Court File and Parties

Court File No.: Sault Ste. Marie 632

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Gordon John Hartling

Before: Justice J. Kukurin

Heard on: December 17, 2013

Reasons for Judgment released on: April 2, 2014

Counsel:

• D. Kirk, counsel for the Crown
• S. Tijerina, counsel for the accused Gordon Hartling

KUKURIN J.

Introduction

[1] These are Reasons for my ruling on the admissibility of portions of the viva voce evidence of several individuals given during the trial. The trial involves two charges of aggravated assault and several breaches. The two victims are the mother of the accused and her gentleman friend, Francis Gill.

[2] The impugned testimony is of statements made by the mother to several persons who attended at her home following the alleged assault on her. These persons testified at trial and recounted things that the mother had said. The Crown wishes this testimony by them to be admitted as trial evidence to establish the truth of what the mother's statements recounted. These statements, coming through these several witnesses, are clearly hearsay. The Crown wishes these to be admitted on the basis that they were spontaneous utterances of the victim, and are admissible on this classic exception to the hearsay rule.[1] In addition, and/or in the alternative, the Crown seeks a ruling that these statements are admissible on the more recently developed principled approach to the admission of hearsay evidence, an approach that involves the twin thresholds of necessity and reliability.

[3] The accused opposes the admission of this evidence as trial evidence. He argues that these statements do not meet the criteria for admission as spontaneous utterances, especially, but not only, the temporal criterion. He maintains that these statements, in the circumstances that they were made, and in the context of the evidence at trial, meet neither the requirement of necessity, nor that of reliability. Therefore, they should be excluded as inadmissible hearsay.

[4] I have already made my evidentiary ruling that the portions of evidence relating to the statements are admissible despite their hearsay nature. This ruling was conveyed orally to counsel on their joint request. This trial has progressed to the point that the Crown has essentially presented its case. The defence needed to know whether the Crown's evidence relating to these contentious hearsay statements is in or is out as trial evidence before commencing its case. This ruling, and the reasons underlying it, may impact not only who is called to testify by the defence but also how the accused's case will unfold. Accordingly, my ruling was given orally with a promise that these written Reasons would follow.[2]

The Witnesses

[5] The individuals whose testimony was called into question are:

(a) Richard Nolan – Fireman and first responder;

(b) Tim Johns – Part-time fireman and first responder;

(c) Karen Bell – Sergeant, Anishinabek Police Service;

(d) Tyler Onofrio – Paramedic and first responder.

Circumstances of the Statements

[6] The circumstances in which these individuals were present to hear utterances of the mother are relevant and important, and worthwhile to review. A 9-1-1 call was made as a result of which the 9-1-1 dispatcher alerted the paramedics on duty to attend at the Garden River municipal address which was the home of the mother of the accused. The paramedic location in Garden River is adjacent to the fire station which typically gets dispatched just minutes after the paramedics. In this case, the firemen saw the ambulance preparing to depart and, because they were more familiar with local addresses, led the ambulance to the home.

[7] On arrival, they entered the home, after some preliminary checking around, and began attending to the medical needs of the mother who was found in her bedroom, and who was visibly badly injured. A male person had been seen moving from her bedroom crossing the main hallway to another bedroom. This person turned out to be the accused, who remained in the second bedroom, with first responder R. Nolan stationed at its doorway, apparently as a precautionary measure.

[8] Paramedic Onofrio was the primary person who was attending to the mother. During his involvement with her, she made a number of utterances or statements, some in the course of conversing with Onofrio, some not. R. Nolan overheard some of what she said.

[9] Sergeant Bell was off-duty in civilian attire travelling to Sault Ste. Marie when she received a call on her cell phone from her dispatcher advising of a call made to 9-1-1 concerning an elderly female with some issues who wanted the police. Sergeant Bell turned around to return to Garden River. En route, she received additional information from dispatch that police were really needed, and that a woman had been beaten by her son. On her arrival, both the ambulance and the fire unit were already on site. She identified herself as a police officer to a paramedic. The mother, by that time, was on a stretcher. Sergeant Bell was previously acquainted with her. Sergeant Bell asked the mother what happened, and the mother made a verbal response to Sergeant Bell. This was the extent of their conversation as the mother was in the process of being removed to be taken to the hospital by ambulance.

[10] It is the statements or utterances of the mother in these circumstances as recounted by these four individuals in their testimony at trial, that formed the subject matter of this evidentiary ruling. However, it is not just what the mother said that is relevant. Just as important is the evidence of other aspects of the situation at that time. These include, among others, when these utterances were made, to whom they were made, the manner in which they were made, and the context in which they were made.

[11] These utterances of the mother, even with the immediate circumstances surrounding their making cannot be considered in isolation. There are other circumstances that are pertinent to this evidentiary ruling.

[12] One significant fact is that the mother was called as a Crown witness and did testify at trial. What she said in her trial testimony has an impact on this ruling.

HEARSAY

[13] It is a long established principle of our legal system that hearsay evidence is presumptively inadmissible at trial. However, this presumption is not absolute. There are a number of well recognized, and long-time acknowledged exceptions to this hearsay rule. These are often referred to as the classical or traditional exceptions[3] which have developed in our common law.

[14] In addition, and more recently, a principled approach to admissibility to hearsay statements has emerged, and is now well entrenched in our jurisprudence.[4]

[15] It is unnecessary to elaborate on the reasons why hearsay is presumptively inadmissible or why exceptions to this hearsay rule exists. These comprise at least one chapter in any text on the law of evidence. However, it would not be inappropriate to review what actually constitutes hearsay.

[16] Essentially, hearsay is an out-of-court statement that is offered to prove the truth of its contents. An out-of-court statement can include previous statements made by a witness who then testifies at trial. An out-of-court statement can also include an "implied" statement which is an assertion revealed through actions, and not words, especially where the actions are intended to communicate a message.[5]

[17] Applied to the present case, the hearsay statements in dispute are those utterances alleged to have been made by the mother of the accused, heard by the Crown witnesses mentioned previously, and tendered in their trial testimony as proof of the truth of what the mother said in those utterances.

SPONTANEOUS STATEMENTS (RES GESTAE) EXCEPTION

[18] A good starting point for this traditional exception to the hearsay rule is the definition of a res gestae statement provided by the Court of Appeal in R. v. Khan:

"[A] a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received."

[19] There are three criteria for a statement to be categorized as a res gestae statement:[6]

1. The statement was made under the ongoing stress or pressure of a dramatic or startling act or event;

2. The statement relates to the occasion that caused the stress or pressure; and

3. There is little if no possibility of concoction or fabrication.

[20] One of the issues often raised in the jurisprudence, and, in fact, raised in this case is the need for contemporaneity of the utterances or statements with the dramatic or startling event that prompted the statement. The Supreme Court of Canada, although upholding the Ontario Court of Appeal in R. v. Khan on a principled approach to the issue of exceptions to the hearsay rule, declined to hold the statement in that case admissible on the res gestae/spontaneous statement exception. In Khan, the statement was made about one-half hour after the event to which it related.[7] The court felt this was too temporarily distant from the event in the case.

[21] Another argument sometimes made for disqualifying the res gestae exception to the hearsay is that the statement in issue was made in response to questions put to the person who made the statement. In some cases, the fact that the impugned statement is a response to a question may affect its admissibility. But this is not, by any means, an inflexible criterion. In the words of the House of Lords:[8]

"The fact that the statement was made in answer to a question is but one factor to consider under this heading."

[22] The Ontario Court of Appeal in R. v. Clark[9] accepted and adopted the reasoning of Ratten v. R.[10] to the effect that the time interval between the utterance and the event, and the difference in locations where the utterance and the offence took place, are:

"relevant factors but not, taken by themselves, decisive criteria".

Ultimately, the danger to be avoided is that the statement in question may have been concocted or fabricated. The court must be satisfied that the circumstances leading to, and surrounding the making of this statement were such that the possibility of fabrication or concoction is remote. Elapse of time between event and statement, even if there are intervening events in that interval, does not necessarily vitiate the spontaneity of the statement.[11]

Application to the Mother's Statements

[23] The statement of the mother recounted by R. Nolan at trial was "He hit me." This was in response to a question put to her by someone else asking what had happened. This statement was made as the mother was being tended to by paramedic T. Onofrio, shortly after his arrival at the home and in the mother's bedroom.

[24] The statements of the mother recounted by T. Johns at trial were also made by the mother when still in her bedroom being attended to by paramedic T. Onofrio. The statements of the mother heard by T. Johns included "Help me, help me. I can't believe he did this to me." It also included her identification of her son as the "he" in this statement, who "did this to me". The mother also stated about her son, that he was "just visiting". T. Johns also recounted the mother's explanation, also made while she was still her bedroom, that she and her son had had a few drinks, that they had started talking about some family issues, that things got out of hand, and that they were arguing and "then he hit me".

[25] There were multiple statements of the mother recounted by paramedic T. Onofrio. This is not surprising as he was the primary caregiver to the mother during this call-out. During his interactions with the mother he did put a number of questions to her, and she made a number of responses to these. She also made a number of utterances that were not in response to questions by him or by anyone else.

[26] The role of T. Onofrio is a significant factor in assessing what the mother said during this interaction with her. He was administering treatment as a professional trained in this area. Critical to his role was making determinations of the state of the person he was treating. Some of these could be made by his own observations: visual, auditory, olfactory, tactile. Other determinations could only be based on answers given to him by the person being treated to questions put by him to that person. Part of his job involved asking questions of the mother so that he could do his job properly.

[27] The evidence of T. Onofrio describes the mother during the time he was ministering to her medical needs as a woman still in the throes of a traumatic event. She was emotional. She was crying. She kept repeating herself. She was clearly distraught. What she said during this time implicated her son, the accused, as the cause of her physical and mental state.

[28] Although no specific evidence was presented as to the lapse of time between the traumatic event (or events) between the son and the mother, from the totality of the evidence can be drawn the inference that the time interval was not very lengthy. The mother was still bleeding from her mouth and from her orbital area. Her highly emotional state, her crying and her repetitive exclamations suggest that what had taken place between her son and her was relatively recent. Her words "Help me, help me", suggest a perceived danger that was still close at hand, or, at least very recently had been.

[29] While some of what the accused's mother is reported to have said while being attended to by T. Onofrio was by way of reply to his questions to her, not all was. At the early stages of their interaction, her utterances were not replies. Rather, they were verbal exclamations, unsolicited, and quite spontaneous. In fact, the mother was at first not able to focus on questions put to her as she kept on making repeated emotional remarks.

[30] It is not surprising that a paramedic would include in his or her assessment of a trauma victim, the degree of the victim's sobriety or intoxication. In fact, T. Onofrio did do this and concluded that the accused's mother was intoxicated during his attendance upon her. However, his testimony provided information that, despite her intoxication, the mother's mental faculties remained relatively unimpaired. She was able to answer questions eventually, and her responses were appropriate. She was aware of her own circumstances. She knew what the paramedic was doing. She even provided some input into decisions to be made for her treatment. Her realization of the paramedic's duty to report and her concern for her son also support an inference that she was thinking rationally despite the alcohol that she had consumed.

[31] The mother's statement to Sergeant K. Bell was in response to a question by Sergeant Bell. This statement was made when the mother was still in her home, on a gurney, shortly before she was taken out to the ambulance. By this time, she was no longer in her bedroom. She was either in the hallway, or more likely, in the area between the living room and dining room, near to the front of her home. This statement was made after the statements or utterances recounted in the evidence of the other three first responders. However, Sergeant Bell describes the mother as crying, moaning, being in a lot of pain, and puffy with facial injuries when she made her statement in reply to her question.

[32] What Sergeant Bell asked the mother was "What happened?" What the mother said to Sergeant Bell was that "It was him. It was Gord. Gord beat me up." This was the extent of their conversation at the time.

Admissibility Under Res Gestae Exception

[33] These statements by the mother, conveyed by these four individuals in their trial testimony are admissible, despite their hearsay nature, under the res gestae exception to the rule against hearsay.

[34] First of all, these were all made under the stress of a dramatic and traumatic event. The mother's deportment and behaviour from the time of the arrival of the first responders, to the time of her conversation with Sergeant Bell, reflected the stress she was under. It was anything but normal. She showed signs of being greatly upset, fearful, highly emotional, crying, moaning and groaning, unable to focus on questions and repeating herself over and over. Her behaviour may have calmed down somewhat during this period but she was still visibly stressed towards the end of that time, at least according to the observations of Sergeant Bell.

[35] Secondly, the statements and utterances of the mother related to the occasion that caused her to be so stressed. It is abundantly clear from the objective observations of all four of the aforementioned Crown witnesses that the mother had undergone a severe physical trauma, and had done so not too long before these observations were made. Even had she said nothing, it would not be difficult to make an inference that her appearance and behaviour were causally connected to this physically traumatic occurrence. But she did say something. She said several things. These statements related specifically to what had brought about her stress, namely, that she had been beaten, and that it was her son Gord who had beaten her.

[36] The third criterion for the res gestae exception is the satisfaction of the court that the possibility of concoction or fabrication is minimal to non-existent. In this case, the evidence of the circumstances surrounding the making of these statements by the mother essentially precludes any conclusion that what she is reported to have uttered was concocted or fabricated. At the time the first responders arrived, there were only two persons in the home: she and the accused. It is ludicrous to imagine that he and she would concoct a story that he had beaten her up. The only other person with whom she may have conspired to make up a false account of what happened to her was Francis Gill. However, both their testimonies at trial were consistent and unassailed in cross-examination. The facts presented in the evidence precluded the possibility of any time together to fabricate a story of what had transpired.

[37] The facts do not allow the mother much time to have thought up, on her own, a fictitious story about the cause of her condition. Moreover, the mother was in no state of mind to do so. She was not only intoxicated but also in a highly emotional state, not the state of mind conducive to the kind of thinking necessary for creating a believable fiction.

[38] The mother was within her own home throughout the time during which these contentious statements were made by her. Not all were made in her bedroom, but all were made in similar circumstances – while being attended by paramedics. These are not statements made in the ambulance, or at the hospital, or in another location. This argues for spontaneity and militates against the possibility that these statements were contrived or planned out in advance.

[39] The fact that some of the mother's statements were in response to questions put to her does not, in my view, detract from the spontaneity requirement inherent in a res gestae exception to the hearsay rule. The questions come from two sources: paramedic T. Onofrio and Sergeant K. Bell.

[40] "Spontaneous" does not necessarily mean unsolicited. The connotation of spontaneous in the context of the res gestae exception is one of being unprepared, unpremeditated or unplanned. Those of the mother's statements made in reply to questions of T. Onofrio and Sergeant K. Bell cannot be said to have been planned. For the most part, they were made off the cuff, without any preparation time, and prompted by the question asked.

[41] The consistency of the mother's statements is another factor that impacts positively on their admissibility. They were uniform in implicating only one person, the accused, as the cause of her distress. This remained consistent as well in her trial testimony where she essentially again identified her son as the perpetrator of the assault upon her. She did not contradict, at trial, any statement she was alleged to have made to any of the first responders or to Sergeant Bell at her home, although to be fair to her, she could not remember much of what had happened.

[42] The suggestion of the defence is that the mother did have a motive to fabricate an event that pointed the finger of wrongdoing at her son, the accused. This motive, it was argued, was to keep both herself and her "boyfriend" Francis Gill from getting into trouble. In her case, it was trouble flowing from an assault by her on the accused, namely, stabbing him in the neck with a nail file. In the case of Francis Gill, it was trouble emanating from his assault on the mother and/or on the accused. I discount both of these arguments as there was no evidentiary foundation to suspect, much less infer, that either of these took place.

[43] The defence also argued that the evidence did not permit the court to make an assessment of the time between the mother's statement and the event that was causally connected to these statements. This is correct, in the sense that the event could not be pinpointed on a temporal continuum. Without a specific timeframe, the court, it was asserted, cannot conclude that the mother's statements were spontaneous. It cannot rule out that there was no time for concoction.

[44] The onus of demonstrating a statement falls with the res gestae exception to the hearsay rule is on the party seeking admission of the hearsay statement under that exception. There are three requirements before a statement falls within this exception. However, the onus of showing these requirements is not necessarily a stringent one. These are not prerequisites that must be shown beyond a reasonable doubt to have been present. In terms of spontaneity of a statement, the importance of the lapse of time before the statement is made can be attenuated by other circumstances. While the temporal proximity of the statement and the event is a factor that one would accord considerable importance in determining spontaneity, it is not the only factor and there is no straight line correlation between spontaneity and elapse of time. In the case of the mother, it is of far greater importance that she was still, and very clearly, under the stress and pressure of the assault upon her when she made the statements in question, than was an assessment of the minutes that elapsed between the event and the statements.

[45] In summary, the circumstantial evidence satisfies me that the impugned hearsay statements and utterances of the mother, presented in the evidence of the aforementioned Crown witnesses, meet the requirements for admission into evidence at trial under the res gestae exception to the rule against hearsay.

PRINCIPLED APPROACH AS EXCEPTION TO HEARSAY RULE

[46] The jurisprudence relating to excepting hearsay evidence from the rule against hearsay has established two criteria: necessity and reliability.

Necessity

[47] "Necessity" refers to the need to have the evidence admitted in the form of hearsay rather than as sworn firsthand evidence of a witness. There may be many reasons why hearsay may be necessary. It cannot simply be equated to an unavailability of a witness at trial. "Necessity" means necessary to prove a fact in issue. The Supreme Court of Canada has, in R. v. Smith[12] directed trial courts to apply a flexible approach to the necessity criterion to enable them to encompass diverse situations.

[48] In the present case, the mother did, in fact, testify at trial. This, argues the defence, militates against the contention that there is any necessity for having her out-of-court statements or utterances to others admitted as hearsay evidence at trial.

[49] This might well have been true if the mother, in testifying as a witness at the trial, had recounted what had happened at her home on the evening in question. It is clear from her trial testimony, both in-chief and in cross-examination,[13] that she could not remember what had happened to her. What did happen to her is the main issue in this case. Accordingly, the Crown has met the necessity threshold for admission on the mother's hearsay statements.

Reliability

[50] There requirement of "reliability" is much more problematic in the context of the principled approach to admission of hearsay. There is a distinction between reliability of hearsay for purposes of being admitted as evidence at trial, and the reliability of such hearsay evidence at trial to support a finding of guilty or not guilty. The former involves "threshold reliability" and the latter involves "ultimate reliability". In this ruling, it is threshold reliability that must be demonstrated. As with the necessity criterion, it must be shown to present on the balance of probabilities.

[51] Threshold reliability is gauged by the circumstances in which the statements were made. This determination has to weigh whether there are sufficient guarantees of trustworthiness in the hearsay statements to offset the concerns that are inherent in the hearsay nature of these statements.

[52] I have already adverted to these manifold circumstances in the analysis of whether the res gestae exception applies. To reiterate, these circumstances include:

• statements/utterances made while the mother was still in the throes of stressful, extraordinary events;

• statements/utterances which were consistent inter se;

• some statements were unprompted;

• mother had no one with whom to collude at the time;

• mother's intoxication level was not so high as to nullify or severely discount the believability of her statements;

• mother understood questions and responded appropriately.

[53] In addition to circumstances closely associated with the making of the statements in question, the court is not only able to, but is mandated to consider any confirmatory evidence that might support the reliability of such statements. In this, the following evidence provides such support:

• the mother's trial testimony did not contradict the hearsay statements attributed to her; if anything, her trial testimony was consistent;

• the mother's physical and emotional condition was consistent with the contents of her statements made at the time;

• the mother's statements were, to a certain point, corroborated by the trial testimony of Francis Gill.

[54] In short, insofar as threshold reliability is concerned, the Crown has met its onus for admission of the hearsay statements of the mother into evidence at trial.

Conclusion on Admissibility

[55] The statements and utterances of the mother as recounted by the four Crown witnesses aforementioned are admitted despite their hearsay nature on both the classical res gestae exception, as well as on the principled approach to the admission of hearsay evidence.

Released: April 2, 2014

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] Spontaneous utterances or spontaneous statements fall within the res gestae exception.

[2] The commencement of the accused's case has been deferred, as additional trial days were needed beyond those individually allotted, partly, perhaps, as a result of this ruling.

[3] Among these are declarations against interest, dying declarations, spontaneous statements (res gestae), prior identification and prior convictions.

[4] Often cited is R. v. Khan, 42 C.C.C. (3d) 197 as an early decision that pioneered this principled approach.

[5] The Law of Evidence (5th edition) Paciocco, D. and Stuesser L. (Irwin Law Inc., 2008) at p. 103.

[6] R. v. Hall, 2011 ONSC 5628, [2011] O.J. No. 5109.

[7] In addition, in Khan, the Supreme Court of Canada did not find that the statement was made under pressure or emotional intensity typically accepted as prerequisites for the spontaneous declaration rule.

[8] In R. v. Andrews, [1987] A.C. 281 quoted in The Law of Evidence in Canada, 3rd ed., Sopinka, Lederman and Bryant (Markham: Lexis Nexis, 2009).

[9] R. v. Clark, (1983), 42 O.R. (3d) 609 (Ont. C.A.)

[10] Ratten v. R., [1972] A.C. 378 (P.C.) per Lord Wilberforce.

[11] R. v. Dakin, [1995] O.J. No. 944, 80 O.A.C. 253

[12] R. v. Smith, 75 C.C.C. 3d 257 cited by Horkins J. in R. v. Sampu, 2012 O.J. No. 672.

[13] See transcript p. 9 (in-chief) and p. 20 (in cross-examination).